This Services Agreement is between Sea Level Media Ltd. (“Agency
”) and the Client (“Client
”). Under this Agreement, the Agency will provide to Client the Services described in Statements of Work
signed from time to time by Agency and Client, on the terms set out in this Agreement.
Agency and Client agree as follows:
When used in this Agreement, the following terms shall have the following meanings unless the context otherwise requires:
” means this Agreement and all schedules and other attachments, as it may from time to time be supplemented or amended, and includes all Statements of Work made under this Agreement, as they may from time to time be supplemented or amended.
” means any graphics, artwork, music, videos, software, code, scripts, text or other content provided by Client to Agency for incorporation by Agency into a Deliverable. Client Content includes any modifications to the Client Content made by Agency as part of the Services.
” means all information, written or oral, provided by a Disclosing Party directly or indirectly to a Receiving Party, and whether provided, disclosed, learned or obtained before or after the Effective Date, and includes: (a) all customer, financial, operating, technical and other information and materials concerning the Disclosing Party or its customers, businesses, technology, properties, assets or prospects; and (b) all software, technical data, know-how, product plans, inventions, processes, designs and similar information of the Disclosing Party. Confidential Information of Client includes any Personal Information of customers or employees of Client that is disclosed by Client to Agency.
” means a deliverable to be provided by Agency to Client as part of the Services, as described in a Statement of Work.
” means a party that has disclosed Confidential Information to the other party.“including
” means “including, without limitation”, and is not intended to be limiting.
“Intellectual Property Rights
” means any of the following: (a) patents; (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated with them; (c) copyrights, mask works and rights in data and databases; (d) rights for the protection of trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
” means personal information under the Personal Information Protection and Electronic Documents Act
(Canada), under the Personal Information Protection Act
(British Columbia), or under any applicable similar legislation of any province or territory.
” means, in relation to a Statement of Work, the project described in the Statement of Work.
” means a party to whom Confidential Information has been disclosed.
” means, with respect to either party, the designated representatives of that party and its directors, officers, employees, financial, legal and accounting advisors and other agents who need to know the Confidential Information for the purposes specified in this Agreement and, in the case of Agency, includes its contractors, service providers, and other third parties who need to know the Confidential Information for the purpose of the services that they provide to Agency in connection with this Agreement.
” means the services to be provided by Agency to Client, as described in a Statement of Work.
“Statement of Work
” means a statement of work signed by Agency and Client, and made under this Agreement.“Term
” means the term of this Agreement as described in Section 8.1.
- Services and Deliverables
Agency will provide to Client the Services and Deliverables described in a Statement of Work.
(a) Agency will supply the services of its personnel to carry out the Services.
(b) Agency will perform any other Agency responsibilities specified in a Statement of Work.
(c) Agency will use commercially reasonable efforts to perform the Services in accordance with any dates or time periods specified in the Statement of Work. However, the parties agree that any dates or time periods specified in the Statement of Work are intended for planning and estimating purposes only, and are not guaranteed by Agency.
(a) Client will perform any Client responsibilities specified in a Statement of Work.
(b) Client will promptly provide to Agency all such documents, information, instructions, approvals and other support, including access to Client personnel, as Agency may reasonably request for the purpose of performing the Services. Client will ensure that all of its personnel promptly and fully cooperate with Agency, and promptly render all such assistance as may be reasonably requested by Agency.
(c) If any Services are provided at Client’s premises, then Client will provide Agency’s personnel with such accommodation, computer resources and other facilities and access as may be necessary, during and outside normal office hours, to enable such personnel to supply the Services.
(d) If Client itself performs, or retains a third party to perform, any services or other activities that interface or interact with Agency’s Services or the Deliverables, then Client warrants to Agency that such services and other activities will be performed in a professional manner and Client shall remain solely responsible and liable at all times for the actions of its contracted third parties as though they were the actions of Client itself.
(e) Client warrants that all information supplied by Client or its agents to Agency before or during the provision of the Services is accurate and complete in all material respects.
(f) Agency will have no liability for any failure to perform its obligations under this Agreement in a timely manner if and to the extent such failure is due to Client not performing its obligations in a timely manner.
(g) If Services are to be performed by personnel of Agency at locations outside Canada, then Client will be responsible for sponsoring any visas and/or work permits required for Agency’s personnel. The costs of applying for and obtaining such visas and/or work permits will be paid by Client. Client acknowledges that in-country performance of Services by specific Agency personnel is dependent on and subject to those personnel being able to obtain any necessary visas and/or work permits.
At any time prior to the completion of Services under a Statement of Work, Client may request that Agency make or permit reasonable changes to the Services, including reasonable changes to any of the Deliverables or their requirements or specifications. To request a change, Client will deliver a written change request to Agency specifying the proposed change and the objective of the proposed change, using the form provided by Agency for that purpose. Within a reasonable period after Agency’s receipt of the change request, Agency will deliver to Client a written response: (a) specifying how the proposed change would be implemented; (b) describing the effect, if any, that the change would have on the schedule for the performance of Agency’s obligations under the Statement of Work; (c) describing the additional charges, if any, that would result from the implementation of the change; and (d) describing any other consequential changes to the terms of the Statement of Work and this Agreement. Agency may decline a requested change if Agency is of the opinion, acting reasonably, that the proposed change is a substantial change to the scope of the Project, or that accepting the requested change would have a material adverse impact on the ability of Agency to perform the Services or to perform other committed services to other clients. Client may accept or decline a response to a change request. If Client accepts a response to a change request, the terms of the request and the response shall be incorporated into a change order signed by both parties. Change orders signed by both parties will be deemed part of the Statement of Work and will be implemented by Agency. A Statement of Work cannot be amended, except in accordance with this section or by a written amendment signed by duly authorized officers of both parties.
- Acceptance of Deliverables
Deliverables will be deemed accepted by Client when the acceptance or sign-off criteria, if any, specified in the Statement of Work has been met, or when Client makes productive use of the Deliverables, whichever occurs first. If no such acceptance or sign-off criteria are specified in the Statement of Work, Deliverables will be deemed accepted on delivery to Client. Once the acceptance or sign-off criteria for a Deliverable have been met, Client must sign-off that the Deliverable is accepted. If the acceptance or sign-off criteria have not been met, then Client must immediately advise Agency in writing of any non-conformities. Deliverables will be deemed accepted by Client if Client does not so advise Agency of any non-conformities within the period specified in the Statement of Work for such acceptance testing or, if no such period is specified, within 10 business days.
FEES, EXPENSES AND TAXES
Client will pay to Agency the fees and other charges specified in the Statement of Work.
Agency will be responsible for all expenses incurred by it in the course of performing the Services, except as otherwise specified in a Statement of Work and except for Permitted Travel Expenses. Client will reimburse Agency for all Permitted Travel Expenses on receipt of an invoice from Agency for such Permitted Travel Expenses. For the purpose of this section, “Permitted Travel Expenses
” means the reasonable out-of-pocket travel, meal and accommodation expenses incurred by the personnel of Agency who are preforming Services away from their home locations at the request of Client, as determined in accordance with the then existing reasonable travel expense policy of Agency.
Client will pay to Agency any deposit specified in the Statement of Work. The deposit will be held by Agency as general security for Client’s ongoing performance of the terms of this Agreement. Agency is not obligated to begin performing the Services until Agency has received the Deposit. Agency will apply the Deposit against the last invoices issued under the Statement of Work. Agency may elect, its sole discretion, to apply the Deposit against any other monetary obligation of Client under this Agreement. Any portion of the Deposit that is not so applied by Agency will be refunded by Agency to Client after the completion of the Project. Agency will not pay interest on the Deposit.
Agency will invoice Client in accordance with the terms of the Statement of Work. Unless the Statement of Work states otherwise, all amounts: (a) will be in American dollars; and (b) will be due within 30 days after the date of the invoice. All invoices will be paid by credit card or wire transfer to the account of Agency specified by Agency, unless otherwise specified by Agency in the invoice. If Client fails to make any payment when due under this Agreement, then, unless prohibited by applicable laws, Client will pay to Agency interest on such amount from the due date until the date of payment at a rate of interest equal to 1.0% per month (equivalent to 12.68% per annum).
Fees are exclusive of any applicable taxes. Client will be responsible for any goods and services taxes, sales taxes, value added taxes, import and customs duties, levies, fees, and similar amounts imposed or assessed by any governmental authority arising from Client’s receipt or use of the Services or the Deliverables. If any taxes are required to be withheld on payments Client makes to Agency, then Client may deduct such taxes from the amount owed to Agency and pay them to the appropriate taxing authority; provided, however, that Client promptly secures and delivers an official receipt for those withholdings and provides such other documents as Agency may reasonably request to claim a foreign tax credit or refund. Client shall ensure that any taxes withheld are minimized to the extent possible under applicable law.
- Intellectual Property Ownership and License
(a) As between Client and Agency, Client shall own all Intellectual Property Rights in and to all of the Client Content. Client hereby grants to Agency a royalty-free license to use, copy, adapt and modify the Client Content for the purpose of providing the Services, to incorporate the Client Content into any Deliverables, and to use Agency’s work for the Client in Agency’s Portfolio and marketing material.
(b) Client acknowledges that Agency builds the Deliverables from components and other materials that Agency has used and will use for other Clients, and that new components and other materials built as part of the Services will form part of Agency’s inventory of components and materials for use with other Clients. Subject to sections (a) and (c), as between Client and Agency, Agency shall own all Intellectual Property Rights in and to the Deliverables and any other work product resulting from the Services. Subject to section (c), Agency hereby grants to Client a non-transferable, non-sublicensable license to use, copy and modify the Deliverables for Client’s own internal use and only for the purposes for which they were delivered. The rights granted to Client under this section (b) are conditional on and subject to payment by Client of all amounts due under this Agreement.
(c) Client acknowledges that a Deliverable may contain third party open source programs and other third-party programs that are owned by one or more third parties and that Agency, not the third party, licenses to Client under section (b). Client acknowledges that a Deliverable may also contain third party open source programs and other third-party programs that are owned by one or more third parties, that are not licensed under section (b), and that are subject to separate license terms identified in the files provided with the Deliverable.
(d) Each of the parties grants to the other party only those licenses and rights specified in this section. No other licenses or rights (including licenses or rights under patents) are granted.
- Employee Non-Solicitation
During the Term and for one year after the expiry of the Term, each party agrees that it will not, either on its own account or for any other person, solicit, interfere with or endeavour to entice away any employee of the other party, with whom the first such party has dealt in relation to this Agreement. Notwithstanding the foregoing, nothing in this section shall prevent the parties from making general advertisements or other solicitations to the public or from hiring any employee of the other party who responds to such an advertisement or who otherwise initiates discussions with the prospective employer. In the event of a breach of this section by either party, the defaulting party will pay to the non-defaulting party an amount equal to six months’ salary of the applicable employee, as liquidated damages and not as penalty.
Agency shall ensure that all Deliverables comprised of advertising, creative and promotional material prepared by the Agency which contains any of the Client’s trademarks properly and accurately identifies the Client’s trademarks in accordance with the Client’s trademark policies.
The Receiving Party will not make any use of Confidential Information of the Disclosing Party, except in accordance with the terms of this Agreement, and all such Confidential Information will be used by the Receiving Party only for the purpose of performing its obligations and enforcing its rights under this Agreement.
- Non-Disclosure and Confidentiality
The Receiving Party will retain in strictest confidence all Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party to those of the Representatives of the Receiving Party who have a reasonable need to know that Confidential Information. The Receiving Party will take appropriate action by instruction or agreement with its Representatives to protect the confidentiality of such Confidential Information and to ensure that each of its Representatives is bound by obligations of confidentiality equivalent to those specified in this Agreement. Any disclosure or misuse of Confidential Information by any Representative of the Receiving Party shall be deemed to be disclosure or misuse by the Receiving Party, and the Receiving Party will be liable for any such disclosure or misuse as if the Receiving Party had so disclosed or misused the Confidential Information. The Receiving Party will not disclose such Confidential Information to any other third party, except in accordance with the terms of this Agreement. The Receiving Party will protect the confidentiality of all Confidential Information of the Disclosing Party with at least the same level of protection as it affords to its own proprietary information and, in any event, not less than a reasonable level of protection considering the nature of such Confidential Information.
- Disclosure Required by Law
If the Receiving Party is requested pursuant to, or is required by, applicable laws to disclose any Confidential Information of the Disclosing Party, then the Receiving Party will, unless prohibited by applicable laws, promptly notify the Disclosing Party in writing, so that appropriate remedies may be taken or compliance with the terms of this Agreement be waived. In such case, the Receiving Party will disclose only that portion of the Confidential Information that is legally required to be disclosed and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the disclosed Confidential Information. Such disclosure shall not alter, limit or abrogate the Receiving Party’s continuing obligations of confidentiality with respect to such disclosed Confidential Information. Nothing in this Article shall require the Receiving Party to violate any applicable laws.
The restrictions in this Agreement on the use and disclosure of Confidential Information shall not apply to those portions of Confidential Information that constitute: (a) information that is generally available to the public or becomes available as a result of a disclosure by the Receiving Party as allowed under this Agreement; (b) information that was available to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party; (c) information that becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such source is not to the knowledge of the Receiving Party bound by a confidentiality agreement with the Disclosing Party; and (d) information that is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party.
- Property of Disclosing Party
Except as otherwise expressly provided in this Agreement, all Confidential Information shall be and remain the property of the Disclosing Party or of those persons from whom the Disclosing Party obtained such Confidential Information and no express or implied license is granted to the Receiving Party in respect of such Confidential Information.
- Notice of Unauthorized Release
The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any unauthorized release of Confidential Information of the Disclosing Party, or any authorized access to such Confidential Information by any third party, or any other breach of this Agreement of which it becomes aware.
- Return of Confidential Information
Except as otherwise expressly provided below, on the request of the Disclosing Party, the Receiving Party will: (a) return or destroy, or cause to be returned or destroyed, all tangible forms of the Confidential Information of the Disclosing Party in its possession or in the possession of its Representatives; (b) use all reasonable efforts to destroy all copies of all materials that incorporate or reflect such Confidential Information; and (c) certify to the Disclosing Party that such materials have been either returned or destroyed, in each case except as to executed original copies of any contractual documents or other materials customarily held by the Receiving Party as legal archival material. Notwithstanding the foregoing, if the Receiving Party requires or might reasonably be expected to require certain Confidential Information for the purpose of performing its obligations or enforcing its rights under this Agreement, then the Receiving Party may retain such Confidential Information for so long as it requires or might reasonably be expected to require such Confidential Information for such purposes.
The parties each acknowledge that irreparable harm may result if they breach their obligations under this Agreement. The parties each acknowledge that such a breach would not be properly compensable by an award of damages and that, in addition to any other available remedies, the Disclosing Party shall be entitled to seek injunctive relief to prevent the misuse, threatened misuse, disclosure or threatened disclosure of its Confidential Information.
Either party may disclose the existence and general nature, but not the specific terms and conditions, of this Agreement. Disclosure of the specific terms and conditions of this Agreement by either party shall require the prior written consent of the other party, except that either party may disclose such information on a need to know basis to its auditors, lawyers, accountants and other such professionals who are under a duty of confidentiality or have entered into a confidentiality and non-disclosure agreement with the disclosing party containing terms similar to those set out in this section. During the Term, Agency shall be permitted to disclose that Client is a client of Agency, and Agency shall be permitted to make such disclosure in writing, on its website and in promotional brochures and similar marketing and promotional material.
The parties will use commercially reasonable efforts to manage the Services to avoid any disclosure of Personal Information by Client to Agency. If Client does disclose any Personal Information to Agency, then Client is the owner and controller of such Personal Information and Agency is a data processor acting on behalf of Client. Agency will immediately report to Client any requests received from individuals for access to or correction of their Personal Information. When such Personal Information is no longer required for the provision of Services, Agency will delete such Personal Information at the request of Client (provided however that Agency may retain such Personal Information for as long as it is required to do so under applicable laws). Client warrants that all Personal Information disclosed to Agency has been collected and disclosed in accordance with all applicable privacy laws.
(a) Subject to sections (b) and (c), Agency will defend, indemnify and hold Client harmless from all claims, demands, legal proceedings, losses, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered by Client arising out of any third party claim brought against Client which alleges an infringement of a Canadian or US patent, copyright or trade secret by Client’s use of a Deliverable (each, an “IP Infringement Claim
”), provided that: (i) Client promptly notifies Agency in writing within 30 days of Client’s first knowledge of an IP Infringement Claim; (ii) Agency has sole control of the defence, negotiation and settlement of the IP Infringement Claim; and (iii) Client provides all reasonable assistance requested by Agency for the purpose of investigating or contesting the IP Infringement Claim.
(b) Opportunity to Cure.
If Agency receives information concerning a possible intellectual property infringement claim (including an IP Infringement Claim) related to a Deliverable, Agency may, at its expense and without obligation to do so, either: (i) procure for Client the right to continue to use the allegedly infringing Deliverable; or (ii) replace or modify the Deliverable to make it non-infringing, in which case Client will thereupon cease use of the allegedly infringing Deliverable. If Agency is unable to effect either of these options at reasonable cost, then Agency may, without obligation to do so, refund to Client all amounts paid by Client for the allegedly infringing Deliverable, and Client will thereupon cease use of the allegedly infringing Deliverable.
(c) Exceptions to Indemnity.
Agency shall have no liability for any intellectual property infringement claim based in whole or in part on: (i) Agency’s inclusion of Client Content in the Deliverable, or Agency’s inclusion of any other third party content in the Deliverable at the request of Client; (ii) third party open source software included in the Deliverable; (iii) Client’s use of any Deliverable after Agency’s notice that Client should cease use of the allegedly infringing Deliverable due to such a claim; (iv) Client’s combination of a Deliverable with any product, program or data not supplied by Agency; or (v) Client’s adaptation or modification of any Deliverable.
Client will defend, indemnify and hold Agency harmless from all claims, demands, legal proceedings, losses, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered by Agency:
(a) arising out of any third-party claim brought against Agency which alleges an infringement of patent, copyright or trade secret by Agency’s use of any Client Content or Agency’s inclusion of any other third-party content in any Deliverable at the request of Client; or
(b) except to the extent that a third-party claim is covered by the indemnity in section (a), otherwise arising out of any third-party claim brought against Agency which directly or indirectly results from or arises out of Agency’s use of any Deliverable, provided that: (i) Agency promptly notifies Client in writing within 30 days of Agency’s first knowledge of such a claim; (ii) Client has sole control of the defence, negotiation and settlement of the claim; and (iii) Agency provides all reasonable assistance requested by Client for the purpose of investigating or contesting the claim.
LIMITED WARRANTY AND LIMITATION OF LIABILITY
Agency warrants that, for a period of 30 days following delivery of a Deliverable to Client, the Deliverable will comply with any specifications for the Deliverable in the Statement of Work and any additional specifications for the Deliverable that are developed as part of the Services and approved in writing by both Agency and Client. In the event that a Deliverable fails to conform to this warranty, the sole right of Client, and the sole responsibility of Agency, shall be for Agency to exercise all commercially reasonable efforts to cause the Deliverable to conform to the warranty within a commercially reasonable time after receipt by Agency from Client of a written notice identifying any such failure to so conform. Any claim for a breach of this warranty must be made, by written notice, within 30 days of delivery of the Deliverable. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR THE DELIVERABLES, AND AGENCY SPECIFICALLY DISCLAIMS AND CLIENT HEREBY WAIVES ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
CIRCUMSTANCES MAY ARISE WHERE, BECAUSE OF A DEFAULT ON AGENCY’S PART OR OTHER LIABILITY, CLIENT IS ENTITLED TO RECOVER DAMAGES FROM AGENCY. REGARDLESS OF THE BASIS ON WHICH CLIENT IS ENTITLED TO CLAIM DAMAGES FROM AGENCY (INCLUDING FUNDAMENTAL BREACH, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACT OR TORT CLAIM), THE AGGREGATE LIABILITY OF AGENCY, ITS AFFILIATES, ITS AND THEIR SUBCONTRACTORS, AND THE PERSONNEL OF EACH OF THEM, FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE OF THE AMOUNTS PREVIOUSLY PAID BY CLIENT TO AGENCY UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIMS DURING THE 12 MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH CLAIMS. THE LIMITATION SHALL NOT APPLY TO: (A) CLAIMS FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH); (B) CLAIMS FOR DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY FOR WHICH AGENCY IS LEGALLY LIABLE; OR (C) CLAIMS ARISING FROM A BREACH OF ARTICLE 5 (CONFIDENTIALITY).
UNDER NO CIRCUMSTANCES SHALL AGENCY, ITS AFFILIATES, OR ITS OR THEIR SUBCONTRACTORS BE LIABLE FOR ANY OF THE FOLLOWING, WHETHER FORESEEABLE OR NOT AND EVEN IF INFORMED OF THEIR POSSIBILITY: (A) SPECIAL, INDIRECT, AGGRAVATED, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) LOST PROFITS, BUSINESS REVENUE, GOODWILL, ANTICIPATED SAVINGS OR OTHER SIMILAR ECONOMIC DAMAGES; OR (C) CLAIMS OF THIRD PARTIES (EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN SECTION (a).
The circumstances outlined below shall render any “No Risk Policy’ null and void: (a) Client lacks a proper sales process or is understaffed, thus unable to have a proper sales process in place; (b) Client fails to conduct sales activities such as calling, emailing or otherwise pursuing inbound leads to the minimum standards established and recommended by Agency; (c) Client suffers a transformation within their organization that substantially impacts the sales process (e.g., the person responsible for pursuing leads is fired); (d) Client does not perform the activities required for the success of the program, including revision and approval of Client Content in a timely manner; consistent follow up on leads and prospects; attendance to weekly meetings, and appropriate use of HubSpot’s platform; (e) in any case, the No Risk Policy shall only be applicable if Client notifies the Agency with at least Forty-Five (45) days in advance of its intention not to renew the Contract.
Client’s Return on Investment from Agency’s program is not limited to inbound sales. For the purposes of this Services Agreement, Return on Investment shall also be measured against new contracts signed two (2) months as of the Effective Date of this Agreement given the following considerations: (a) Client is engaging with Agency at a consulting level; (b) Agency provides advisory and consulting services to guide Client in shaping their marketing and sales process, thus new contracts not directly coming from inbound leads shall also be considered as a result thereof.
TERM AND TERMINATION
The term of this Agreement (the “Term
”) shall commence on the Effective Date and will continue until terminated by either party as set forth in this Agreement. This Agreement shall not terminate solely by reason of the completion of the Services by Agency under any Statement of Work.
- Termination by Client for Default of Agency
In addition to all other rights available at law or under this Agreement, Client may immediately terminate this Agreement by notice in writing to Agency if Agency has breached any material provision of this Agreement, and such breach is not remedied by Agency within 30 days of notice in writing from Client.
- Termination by Agency for Default of Client
In addition to all other rights available at law or under this Agreement, Agency may immediately terminate this Agreement by notice in writing to Client if: (a) Client has breached any payment obligation under this Agreement, and such breach is not remedied by Client within 10 days of notice in writing from Agency; or (b) Client has breached any other material provision of this Agreement, and such breach is not remedied by Client within 30 days of notice in writing from Agency.
(a) On the termination of this Agreement, Client will pay Agency for all Services provided up to the date of termination and, where Agency terminates for breach, Client will also pay Agency for any additional costs Agency reasonably incurs as a result of the early termination of the Services, such as costs relating to subcontracts or relocation costs. Agency will take reasonable steps to mitigate any such additional costs.
(b) If the Services are being provided on a fixed price fees basis, then Client will pay Agency all sums due at the date of termination in accordance with the payment plan set out in the Statement of Work, plus any related payments that have been withheld, together with fees on a time and materials basis for Services provided after the date of the last applicable payment under the payment plan at hourly rates equal to those specified in the Statement of Work or, if no such hourly rates are specified in the Statement of Work, at the then current reasonable hourly rates charged by Agency for such services.
- Termination in Addition to Other Rights
On the termination of this Agreement, each of the parties will remain liable for all financial and other obligations arising under this Agreement which may have accrued prior to such termination. The express rights of termination in this Agreement are in addition to, and shall in no way limit, any rights or remedies Client or Agency may have under this Agreement, at law or in equity.
Agency may elect to suspend its performance of some or all of the Services if: (a) Client does not pay any amounts when due under this Agreement; or (b) Client is in breach of its other obligations under this Agreement. Agency will give at least five (5) business days’ notice before suspending for non-payment.
This Agreement shall remain in full force and effect for a period of Twelve (12) months as of the Effective Day. This Agreement, along with the fees, work commitment and other terms set out on the Statement of Work, shall automatically renew unless Client gives Agency written notice to the contrary at least Forty-Five (45) days prior to the expiration thereof, so as to allow the Agency for a proper Project Closeout to transfer necessary information and records to Client regarding the activities performed under this Agreement.
If any dispute or disagreement of any kind arises at any time with respect to this Agreement, its interpretation or application, its performance by the parties, or in respect of any defined legal relationship associated therewith or derived therefrom, the parties agree that good faith negotiations will take place between the parties with the objective of resolving such dispute or disagreement. If such good faith negotiations have not resolved the dispute or disagreement within a period of ten (10) business days, the dispute or disagreement will be referred to the Chief Executive Officers of the parties or their designates who will attempt in good faith to resolve such dispute or disagreement.
If within the next following period of ten (10) business days, the dispute or disagreement has not been resolved to the satisfaction of the parties, such dispute or disagreement shall be resolved by binding arbitration pursuant to the Arbitration Act
(British Columbia) or the International Commercial Arbitration Act
(British Columbia), as applicable. The arbitration will be before a single arbitrator chosen by agreement of the parties or, failing agreement, appointed pursuant to the Arbitration Act
(British Columbia) or the International Commercial Arbitration Act
(British Columbia), as applicable, on application by either party. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the parties will bear its own costs of the arbitration. The arbitration will take place in Vancouver, British Columbia, unless the parties agree otherwise. Agency may suspend the performance of any or all of the Services during any period during which a dispute or disagreement remains unresolved.
- Recourse to Courts Limited
The parties agree that good faith negotiations and arbitration shall all be without recourse to the courts and that the award of the arbitrator shall be final and binding, except that: (a) either party may appeal an arbitration award to the courts of British Columbia on a question of law; and (b) either party may apply to a court of competent jurisdiction for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
All notices, requests, demands, claims, and other material communications under this Agreement will be in writing, and will be deemed duly given when delivered, personally or by courier, in each case addressed to the intended recipient. Either party may change its address for notice from time to time by notice given in accordance with this section.
Agency may subcontract any part of the Services to one or more subcontractors selected by Agency. Any such subcontracting will not affect Agency’s obligations to Client for Services provided under this Agreement. Agency shall remain solely responsible and liable at all times for the actions of its subcontractors as though they were the actions of Agency itself. Any reference to the personnel of Agency in this Agreement includes the personnel of any subcontractor of Agency.
Neither party may assign its interest in this Agreement without the prior written consent of the other party.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other prior proposals, communications, agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement. There are no warranties, conditions, or representations and there are no agreements in connection with such subject matter, except as specifically set forth in this Agreement.
- Governing Law and Attornment
This Agreement shall be governed by and construed in accordance with the laws of British Columbia and the federal laws of Canada applicable in British Columbia, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. Subject to the provisions of Article 9, the parties consent to the exclusive jurisdiction of the courts located in the Province of British Columbia for any legal action instituted by either party against the other with respect to the subject matter of this Agreement.
Unless otherwise indicated in this Agreement, all dollar amounts referred to in this Agreement are in the currency of the United States of America. The parties agree that this Agreement shall not be construed either against or in favour of either party. If there is any inconsistency between a term of this Agreement and a term of the Statement of Work, the term of this Agreement shall prevail unless the Statement of Work expressly provides otherwise.
Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favour of the other.
- Remainder Not Affected by Invalidity
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement shall be consummated as originally intended to the greatest extent possible.
A waiver of any term or breach of this Agreement is effective only if it is in writing and signed by the waiving party. No omission, delay or failure to exercise any right or power, or any waiver by either party of any breach or default, whether express or implied, or any failure to insist on strict compliance with any provision of this Agreement, shall constitute a waiver of any other provision. Any waiver of any provision of this Agreement shall not constitute a continuing waiver unless otherwise expressly provided.
Except as otherwise expressly provided in this Agreement, the remedies set forth in this Agreement are cumulative, and are in addition to all the rights and remedies available to Agency or Client, as the case may be, under law, equity or otherwise. Except as otherwise expressly provided in this Agreement, nothing contained in this Agreement shall limit any other remedies which either party may have as a result of the default of the other party under this Agreement, and the parties agree that remedies for breach of this Agreement may be in equity by way of injunctive relief or specific performance, as well as for damages and any other relief available, whether in law or in equity.
Each party will be entitled to be reimbursed by the other party for all reasonable costs and expenses (including, but not limited to, reasonable legal fees and disbursements) in its successful prosecution or defense of any breach or alleged breach of a provision of this Agreement.
Client acknowledges that the Deliverables may be subject to export and re-export restrictions under United States and Canadian export control laws and thus may not be exported or re-exported except in compliance with such laws.
If and to the extent that any of the expenditures incurred by Agency in connection with the Services are eligible as deductions against income or income tax credits or otherwise give rise to a tax benefit, whether pursuant to the scientific research and experimental development (SR&ED) rules under the Income Tax Act
(Canada) or under any similar laws in any jurisdiction, then Agency shall be deemed to have incurred such expenditures on its own behalf and Agency shall have the sole right to claim and use that deduction, credit or other benefit.
The parties to this Agreement are independent contractors, and not agents, partners, joint venturers or employees of one another. Nothing in this Agreement shall make or be construed to make Agency and Client partners or agents of each other or to create any other relationship by which the acts of either party may bind the other or result in any liability to the other.
- Services are Non-Exclusive
Client acknowledges that Agency provides services to other clients, some of whom may be competitors of Client. Client agrees that Agency may do work for all such other clients, provided that Agency does not disclose any Confidential Information of Client to such other clients. Notwithstanding any other provision of this Agreement, Agency will not be prevented or restricted by this Agreement from using any techniques, ideas, concepts or know-how relating to Agency’s business activities.
Neither party shall be liable for damages caused by delay or failure to perform its obligations under this Agreement where such delay or failure is caused by an event beyond its reasonable control. This provision does not apply to any of Client’s obligations to make payments under this Agreement.
The parties have expressly requested that this Agreement and its ancillary documents be drafted in English. Les parties ont expressément exigé que cet accord et ses documents connexes soient rédigés en langue anglaise.
This Agreement may not be amended except by a written amending agreement signed by duly authorized officers of both parties.
This Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument. This Agreement may be executed by electronic means and signature pages exchanged by electronic means shall be binding on the parties to the same extent as the original signed pages.